NSW Trustee & Guardian v Reid [2021] NSWSC 1053

NSW Trustee & Guardian v Reid [2021] NSWSC 1053

On the proper construction of May Ethel Basham's will, the gift of 'all my real estate' to Jennifer Reid includes May's vested remainder interest in the Blair Athol Property from Florrie Doreen Hurley's estate, as the remainder was an interest capable of disposition and falls within the generic description of 'all my real estate'; there being no contrary intention and consistent with statutory definitions and prior case law.

Jurisdiction
Australia
Judgment Date
23 August 2021
Procedural Posture
Declaratory Relief—succession/construction of Will / Principal Judgment
Outcome
Declaration made in favour of the plaintiff; costs ordered to be paid from the estate.
Legal Topics
['construction of Will' 'administration of Estates' "nature of Devisee's Interest"]
['succession Law' 'equity'] ['construction of Will' 'administration of Estates' "nature of Devisee's Interest"]

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Procedural Posture

Declaratory Relief—succession/construction of Will / Principal Judgment

Legal Issues

  1. 1 ["Whether the gift of 'all my real estate' in May Ethel Basham's will includes the Blair Athol Property held as a vested remainder from Florrie Doreen Hurley's estate." 'Whether the Blair Athol Property falls to Jennifer Reid under clause 5 or to the residuary beneficiaries.']

Ratio Decidendi

On the proper construction of May Ethel Basham's will, the gift of 'all my real estate' to Jennifer Reid includes May's vested remainder interest in the Blair Athol Property from Florrie Doreen Hurley's estate, as the remainder was an interest capable of disposition and falls within the generic description of 'all my real estate'; there being no contrary intention and consistent with statutory definitions and prior case law.

Court Disposition

Declaration made in favour of the plaintiff; costs ordered to be paid from the estate.

Orders

  • ["Declare that the gift of 'all my real estate' to Jennifer Reid includes the Blair Athol Property held by the plaintiff as trustee of the estate of the late Florrie Doreen Hurley." "Order that the plaintiff's costs be paid out of the estate of the late May Ethel Basham on the indemnity basis."]